Source: AFS Law (Investigations Blog)

At the Antitrust West Coast Conference on May 14, Acting Deputy Assistant Attorney General for Criminal Enforcement Daniel Glad stated that the Department of Justice treats artificial intelligence-driven pricing software the same as traditional collusion and that using software does not alter the antitrust rules or lessen liability. He explained that competitors inputting non-public pricing data into a shared algorithm or large language model and relying on its outputs could be viewed as engaging in a horizontal price-fixing conspiracy subject to per se criminal liability. Glad referenced recent enforcement tools such as the Procurement Collusion Strike Force and the Whistleblower Rewards Program as part of ongoing DOJ capabilities to detect algorithmic collusion.

Glad advised that companies deploying AI or algorithmic tools in pricing, procurement, or revenue management must conduct meaningful antitrust risk assessments and that trivial or purely formal reviews are insufficient. He also warned that attributing wrongful conduct to “the model” will not serve as a defense under current compliance standards. The Antitrust Division has accordingly updated its Evaluation of Corporate Compliance Programs to include specific inquiries about AI and algorithmic tools, underscoring the DOJ’s focus on these technologies in criminal antitrust enforcement.